Commonwealth v. MorrowCommonwealth v. Morrow
- Reporters:
- , ,
- Before:
- Hennessey
The defendant appeals under
At the age of sixteen, the defendant was arrested and brought before the juvenile session of the District Court for the conduct which ultimately resulted in the indictments described above. He was represented by counsel at this session. The judge dismissed the delinquency complaint (
The defendant filed a motion for modification of the sentences and a motion to revoke the sentences and withdraw his pleas of guilty, but after an evidentiary hearing, 1 both motions were denied. The defendant appealed and assigns as error the denial of these motions. The judge filed findings of fact as to the denial of the motion to withdraw his pleas of guilty.
1. We consider first the denial of the motion to revoke sentences and withdraw pleas of guilty. There was no error.
The record of a guilty plea entered subsequent to the decision in
Boykin
v.
Alabama,
395 U. S. 238, decided on June 2, 1969,
2
is required to show affirmatively that a defendant who pleads guilty entered his plea understandingly and voluntarily. See
Brady
v.
United States,
397 U. S. 742, 747-748, n. 4;
Huot
v.
Commonwealth, ante,
91, 99. The
Boykin
case indicated that when a plea of guilty is entered in a State criminal trial, three Federal constitutional rights are waived: namely, the privilege against self-incrimination, the right to trial by jury and the right to confront one’s accusers. 395 U. S. at 243. Although the inquiry directed to the defendant in this case, before his pleas were accepted, was a searching one, only one of the three waived constitutional rights (waiver of jury trial) was the subject
We conclude that the entire dialogue with the defendant was sufficient to satisfy the Commonwealth’s burden of showing that the guilty pleas were understanding^ and voluntarily made.
3
The
Boykin
case does not
In reaching our conclusion that there is here an affirmative showing of voluntary and intelligent pleas of guilty, we reject as unconvincing the several following arguments of the defendant which are addressed to the particular circumstances of this case.
The defendant argues that his pleas of guilty are defective since he was not advised that his pleas could subject him to the operation of G. L. c. 123A, which concerns the care, treatment and rehabilitation of sexually dangerous persons. In establishing that a guilty plea is offered intelligently and voluntarily by the defendant, the judge must ensure that the plea has been made with an understanding of the nature of the charge and the consequences of the plea.
Brady
v.
United
States, 397 U. S. 742, 748.
Huot
v.
Commonwealth, ante,
91, 100-101. We conclude that the defendant was adequately informed of the consequences of his plea. He
The defendant’s reliance on
Durant
v.
United States,
410 F. 2d 689 (1st Cir.), is misplaced. The court in that case held that a defendant was entitled to know that, by statute, one convicted and sentenced for certain narcotics violations was ineligible for parole. That case interprets “consequences of the plea” within the framework of
The defendant further contends that his pleas of guilty are defective since he was prompted to plead only after his counsel told him that if he did so, he would receive a lighter sentence. He also seems to argue that one who is sixteen years old is incapable of intelligently and voluntarily entering a plea of guilty. Neither argument is persuasive.
A plea of guilty is usually made in anticipation of a lighter sentence. A guilty plea, however, is not “compelled and invalid under the Fifth Amendment whenever motivated by the defendant’s desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquit
A guilty plea to be intelligently made does not require that all advice offered by the defendant’s counsel withstand retrospective examination. McMann v. Richardson, 397 U. S. 759, 769-771. Parker v. North Carolina, 397 U. S. 790, 797-798. Furthermore, the trial judge’s finding that no promises were made to the defendant is clearly supported by the record. He was advised that neither his lawyer’s advice nor the district attorney’s recommendations were binding on the judge.
As to the defendant’s age, the record shows that his decision to plead guilty was made in consultation with his father and his lawyer. The defendant was told that the ultimate decision to plead guilty was his. There is nothing in the record to indicate that the defendant was incompetent to stand trial. The same standard should be applied to the acceptance of a guilty plea.
The defendant argues that it was error for the judge to accept his plea of guilty to the charge of rape, because the facts before the judge did not indicate that the defendant penetrated the victim. A judge may accept a guilty plea even though there is no separate, express admission by the defendant that he committed the acts claimed to constitute the crime charged in the indictment. Indeed, the fact that a defendant professes innocence does not alone invalidate a guilty plea.
North Carolina
v.
Alford,
400 U. S. 25, 32-38.
Huot
v.
Commonwealth, ante,
91, 99. A plea of guilty is an admission of the facts charged and “is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. . . . When one so pleads he may be held bound.”
Kercheval
v.
United States,
274 U. S. 220, 223-224.
Kuklis
v.
Commonwealth,
361 Mass. 302, 305. Nevertheless, it is desirable that a factual basis for the guilty plea be shown, by specific admissions of the de
After the defendant offered his guilty pleas, and before the judge accepted them, the defendant was asked certain questions in open court by his attorney. In answer to the questions, the defendant admitted committing the following acts. He and three friends went to an apartment building in Cambridge, went inside, tied up two men in the basement, took items of personal property from them and hit each of them over the head with a beer bottle. Then all four went upstairs, some with weapons, and threatened other people in the building. One of the four, but not the defendant, raped a woman while the defendant was present. Meanwhile, money and other items were taken from a man. As the group left, the defendant threw an iron or toaster at the rape victim which struck her in the face.
For an accomplice to be found guilty of rape, penetration by him is not required. Thus, a woman
(People
v.
Haywood,
131 Cal. App. 2d 259;
People
v.
Trumbley,
252 Ill. 29), or the victim’s husband
(People
v.
Chapman,
62 Mich. 280;
Bohanon
v.
State,
289 P. 2d 400 [Grim. Ct. App. Okla.]), neither of whom could be guilty of rape acting alone, can be guilty of rape as an accomplice. The defendant could have been found guilty on the rape indictment either as a principal or an accessory before the fact.
One present, but not acting, may also be an accessory before the fact. Commonwealth v. DiStasio, 297 Mass. 347, 361. The offence of being an accessory before the fact involves counselling, hiring or otherwise procuring. G. L. c. 274,- § 2. This language means something more than mere acquiescence but does not require physical participation, if there is association with the criminal venture and any significant participation in it. Commonwealth v. French, 357 Mass. 356, 391.
Whether one is a principal or an accessory before the fact makes little difference, since he must be indicted, tried and punished as a principal.
We are of opinion that the facts would have warranted findings that the defendant stood watch, was ready to render aid if needed, did in fact render aid, and generally encouraged the commission of the offence. There was a sound factual basis to support a conclusion that he was guilty of rape as a principal and as an accessory before the fact. This in turn supported the conclusion that his plea of guilty to the rape charge was voluntary and intelligent.
2. The defendant assigns as error and argues that he was denied due process of law in violation of the Fourteenth Amendment to the United States Constitution by the dismissal of the juvenile complaints and the
3. Finally, we consider the denial of the defendant’s motion for modification of sentences. The defendant argues that the sentences imposed upon him were of such length as to constitute cruel and unusual punishment in violation of the Eighth and. Fourteenth Amendments to the United States Constitution and arts. 12 and 26 of the Declaration of Rights of the Constitution of the Commonwealth.
It is clear that punishment may be cruel and unusual not only in its manner but also in its length. In
Weems
v.
United States,
217 U. S. 349, a sentence was held cruel “in its excess of imprisonment,”
id.
at 377, and it was said that “punishment for crime should be graduated and proportioned to [the] offense.”
Id.
at 367. Although the Legislature has great latitude in setting the length of punishment
(Guerra
v.
Fitzpatrick,
436
The defendant also argues that there are mitigating circumstances present which, from the sentences imposed, indicate that the judge’s imposition of otherwise lawful sentences on him constitutes cruel and unusual punishment. He points to the fact that the practical effect of a minimum thirty year term where parole eligibility does not occur until he has served twenty years (
It appears that the defendant did not appeal the sen-
So ordered.
Notes
Note that a plea of guilty within the Federal system is open to collateral attack and a defendant is entitled to a hearing (presumably evidentiary) on his motion to vacate sentence, even though
The Boykin case applies here because the pleas of guilty were accepted on June 23, 1969.
In open court, defence counsel first summarized the details of the crimes charged. Thereafter defence counsel propounded the following questions, all of which were answered by the defendant in words consistent with understanding and voluntariness:
1. “Did you in fact commit the acts as I have stated?” ■
2. “Do you wish to plead guilty to these indictments which relate to the facts that I have just told you?”
3. “Do you know that you have an absolute right to a trial to ascertain your innocence or guilt, with or without a jury; and that by pleading guilty, you waive such right?”
4. “Do you understand that by pleading guilty, you admit the facts as I have stated them to‘¡you?”
5. “Arthur, after you mentioned to me that you wanted to change your plea, did you have an opportunity to discuss this with a member of your family in the courtroom today?”
6. “Who was that member of your family?”
7. “Was he present while you and I had a discussion relative to any change in plea?”
8. “Do you plead guilty willingly, freely and voluntar[il]y?”
9. “Do you understand that by pleading guilty, you leave it to this Court to impose such sentence that the law deems fit in accordance with the law?”
10. “Do you understand that the maximum penalty for the offenses for which you have been indicted . . . [is] life imprisonment?”
11. “And do you understand that the Court could not only give you one life sentence but give you a life sentence on and after the other life sentence? Do you understand that?”
12. “Have any promises been made to you which induced you to plead guilty?”
13. “Has anyone forced you to plead guilty?”
14. “Have any threats been made to you which induced you to plead guilty?”
15. “Have you discussed this matter fully with me as your attorney?”
16. “Are you confused in any way by the questions I have asked you?”
Thereafter the judge inquired as follows:
1. “Are you satisfied that your lawyer fairly and fully represented you?”
2. “Are you satisfied that he gave you good legal advi[c]e?”
3. “Do you also understand that no matter what indications you may have gotten from your lawyer that there might be some recommendations as to what should be done with you by the District Attorney, that is not binding on the Court? It is fully within my discretion to give you what sentence in my own discretion that I deem proper?”
Compare
See now the Rules of the District Courts (of Massachusetts) with amendments promulgated April 23, 1973, and effective May 7, 1973, clarifying and improving the procedures for consideration of the dismissal of juvenile complaints.
Compare Tollett v. Henderson, 411 U. S. 258, 267, which holds that a defendant cannot raise, in a Federal habeas corpus proceeding, independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of a guilty plea. He may only attack the voluntary and intelligent character of the plea. For two cases predating this decision, see Acuna v. Baker, 418 F. 2d 639, 640 (10th Cir.), which held that a subsequent plea of guilty by a juvenile waived the denial of his right to counsel at a waiver hearing. Contra Kemplen v. Maryland, 428 F. 2d 169,174, fn. 11 (4th Cir.).
Armed burglary has a ten year minimum.